Bagley v. State
| Decision Date | 15 April 1908 |
| Citation | 109 S.W. 1095 |
| Parties | BAGLEY v. STATE. |
| Court | Texas Court of Criminal Appeals |
Appeal from District Court, Grayson County; J. M. Pearson, Judge.
Bob Bagley appeals from a conviction. Affirmed.
F. J. McCord, Asst. Atty. Gen., for the State.
Appellant was convicted of horse theft; his punishment being assessed at 10 years' confinement in the penitentiary.
During the argument appellant's attorney stated to the jury as follows: Adamson, the assistant county attorney, replying, said: Objection was urged to this statement or argument as being prejudicial to appellant's rights. The court stated that he did not understand the argument. Adamson then stated: The objection is that this was a reference to appellant's failure to testify in his own behalf. We are of opinion this exception is not well taken. The argument was over what may or may not have been the testimony of the witness Allen, and the failure of defendant to put Kirk on the stand and introduce his evidence bearing upon the same question. Replying to this, the county attorney stated that he was not referring to appellant's failure to testify, but to the fact that he (appellant) did not place on the witness stand the witness Kirk. We are of opinion this did not operate as a violation of the statute prohibiting an allusion to the failure of defendant to testify. It is true, appellant might have taken the stand, but did not, and the county attorney was simply explaining that he was referring to appellant's failure to place Kirk on the stand, and not to the fact that he (appellant) did not testify.
The other matters set up in motion for a new trial cannot be considered without the evidence, which is not incorporated in the record.
There being no reversible error in the record, the judgment is affirmed.
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